The embattled gossip site is facing a $100 million privacy lawsuit from Hogan over a sex tape and, last week, incurred widespread condemnation over a separate story involving an unnamed male escort trying to blackmail an executive at a major media company. The decision to publish and then remove the article prompted an internal meltdown at Gawker and also led some to suggest it would hurt the company’s chances with a jury in the Hogan case.

Now, the racist rant could help support Gawker’s defense: First, that Hogan is a public figure. Second, that the website had a First Amendment right to publish a short clip of the sex tape to prove its existence, and because Hogan’s behavior--including his having sex with the then-wife of a minor celebrity--is newsworthy. The woman in the tape is Heather Clem, who was at time married to Hogan’s friend, a Florida DJ known as Bubba the Love Sponge.

Now, it turns out the newly-unearthed audio tape involves Hogan, whose real name is Terry Bollea, speaking to Clem in vulgar language about his daughter dating black men, including:

"I mean, I'd rather if she was going to f*** some n*****, I'd rather have her marry an eight-foot-tall n***** worth a hundred million dollars! Like a basketball player! I guess we're all a little racist. Fucking n*****."

The veracity of the audio tape, released by the National Enquirer, has been confirmed by several sources and by Hogan himself. On Friday, Hogan apologized and, shortly before the tape came out, tweeted a cryptic message that was quickly retweeted by Gawker owner Nick Denton:

In the storm I release control,God and his Universe will sail me where he wants me to be,one love. HH

All the controversy will boost Gawker’s public interest defense over the sex tape, as will a recent court order that forces the FBI to release still other tapes related to the Hogan circus.

This does not, of course, mean Gawker will prevail at the jury trial, which is scheduled for October. The case will be tried in Florida state court near Hogan’s hometown and the local jurors may side against New York-based Gawker, no matter what Hogan does or says.

But for now the release of the Hogan outburst is an unexpected boost for Gawker in one of its darkest hours.

Senior officials are urging their countrymen to abandon Facebook FB in favor of domestic social media, saying that the latter offer greater freedom of speech, after Mark Zuckerberg’s firm deleted a string of posts containing a slang Russian term for Ukrainians.

The news agency ITAR-TASS reported Igor Shchegolev, an aide to President Vladimir Putin as saying that switching to rivals like Vkontakte would help users avoid having their content blocked.

Shchegolev’s comments followed a 24-hour ban on Facebook for Maxim Ksenzov, who is deputy head of Roskomnadzor, Russia’s equivalent of the Federal Communications Commission, for using the term ‘khokhol’ in a post.

“Tolerance is fashionable at the moment (and I’m not talking about the religious notion). But I don’t want to be tolerant!!” Ksenzov wrote, according to The Moscow Times. “Soviet people are Soviet People. Sometimes khokhly are khokhly.”

The term, which originally referred to the long top-knot of hair worn by Cossacks, generally implies a sense of being backward peasants. In Russia, where the concept of liberal political correctness has struggled to make any meaningful headway, its use is still sometimes affectionate (if always patronizing).

Roskomnadzor is an unlikely champion of free speech by anyone’s standards: it has closed down over 10,000 websites for various offenses, often exploiting a vague definition of ‘extremism’ in recent legislation to shut down anything that smack of opposition to Putin and his regional satraps.

Even when sites aren’t closed, Putin loyalists in the Russian business arena are capable of ensuring that they don’t spread critical material. Pavel Durov, the founder and CEO of Vkontakte, fled the country last year after coming under pressure for allowing opposition leader Alexey Navalny and his supporters to post freely on the site.

Vkontakte is the most popular social network in Russia and enjoys a reputation as ‘the Russian Facebook.

Under its community standards, Facebook reserves the right to block hate speech, which it defines as attacks on others based on their race, ethnicity and nationality, among other criteria.

]]>http://fortune.com/2015/07/10/facebook-accused-of-restricting-free-speech-by-a-putin-aide/feed/0Page and portrait of Pavel Durov, the founder of Vkontakte social networkgeoffreytsmithDick Costolo is right about what Twitter has done for free speechhttp://fortune.com/2015/07/02/costolo-twitter-free-speech/
http://fortune.com/2015/07/02/costolo-twitter-free-speech/#commentsThu, 02 Jul 2015 23:19:39 +0000http://fortune.com/?p=1200494]]>Twitter is far from perfect in many ways, both as a social product and as a business. It has repeatedly vacillated about what it wants to be, switched product chiefs the way some people change their socks, bulldozed its third-party developer community (and then tried to kiss up to them when it needed them), and introduced too many features that appeal to advertisers but not to its long-time users.

But despite all of that, the service is still an incredible tool for distributing information in real-time, and for empowering free speech by virtually anyone with a PC or mobile phone, anywhere in the world. Dick Costolo, whose last day as CEO of Twitter was July 1, made this point in a piece he wrote that was published in The Guardian, arguing that while the company started as a social tool for Silicon Valley geeks to stay in touch with one another, it eventually grew to the point where it “started to represent the democratic ideal of access for all.”

That might sound like a departing chief executive trying to gild his reputation as he exits a company. And there may be a touch of that at work in the Guardian piece--as well as the interview Costolo gave the newspaper after a speech in Spain, where he touched on some of the same themes. But whether he’s trying to shape his legacy (as Bloomberg Business argues) or not, there is more than a little truth to what the former Twitter CEO has to say about the role the service has played.

“Today, people can access information from its original source, instantly. This makes it much more difficult to use information as a tool for wielding power because information is equally, immediately available. It means there are more perspectives on a news story – from mainstream media, eyewitnesses or the newsmakers themselves. It means the record can be set straight when something is reported inaccurately. And that what constitutes a news story is not just decided by a select few, but by individuals all over the world.”

Costolo is right on this point (although this was not solely his doing, obviously). Almost since it launched in 2007, when it was still called Twtr and had a goofy logo that looked like it was a brand of chewing gum, Twitter has been an amazing tool for freedom of information, and for turning anyone with a smartphone into a “citizen journalist.” Whether it was Flight 1549 landing in the Hudson river, the uprising in Iran, Egypt during the Arab Spring, or earthquakes in Japan, Twitter was there providing real-time information, live photos, videos and commentary from those involved.

Of course, Twitter’s commitment to being the “free-speech wing of the free-speech party,” which Costolo did have a lot to do with--along with former chief counsel Alex Macgillivray--has had its downsides as well, including a vast outpouring of abuse and harassment that the company has had trouble dealing with. And plenty of people have used the platform to espouse all manner of offensive and hateful beliefs.

Twitter has run into a host of problems because of its free-speech principles, including being banned in Turkey and a number of other countries and shut down by dictators for spreading the news they didn’t want people to hear. It’s also being sued in France and elsewhere for carrying messages that breach the laws in those countries around homophobia, racism and other kinds of behavior. But ultimately, Twitter’s openness and the ability it gives virtually anyone to publish has been a tremendous tool for freedom of information.

“For most of history we have lived in a world with artificial barriers. Barriers to communication and the flow of information. Barriers based on status – political, racial, socioeconomic status. These artificial walls built between people limited our ability to truly see each other. They made it hard to have compassion for people living lives very different to our own. But these barriers are coming down.”

Despite its numerous faults and flaws, despite the ongoing chaos in the executive suite, despite its inability to satisfy the demands of Wall Street, there’s no question that Twitter has become a crucial tool. A tool for free speech, for empowering average citizens who are fighting against corrupt governments and for allowing those who feel their story isn’t being told properly to reach out to their own fans or audiences directly.

It’s like a group chat tool that the whole world can use, and that has both a positive side and a negative side--but in most cases the former outweighs the latter. There has certainly never been anything like it before, and for his role in helping to build and support that, Costolo deserves some credit.

]]>http://fortune.com/2015/07/02/costolo-twitter-free-speech/feed/0Twitter Inc. Chief Executive Officer Dick Costolo 2015MathewHard choices for Google as judges grow bold on censorshiphttp://fortune.com/2015/06/21/google-censorship/
http://fortune.com/2015/06/21/google-censorship/#commentsSun, 21 Jun 2015 13:10:20 +0000http://fortune.com/?p=1183982]]>Google is in a tough spot. For years, it has met censorship demands in different countries by offering a local workaround. But now some judges have caught on and are asking the company to rip out search listings worldwide - a trend that is likely to embolden more courts to do the same.

Google GOOG is now left with few options, none of them great, according to people familiar with the company. What happens next will affect not only Google, but also free speech and the way people see the internet across the globe.

Google censorship goes global

Censorship on Google is hardly new of course. The company has long scrubbed links to certain criminal material like child pornography, and removed search results at the behest of copyright owners. It also censors country-specific Google sites to obey national laws like those in Germany - that’s why, if you search for Nazi merchandise on German Google (“Google.de”), you won’t find anything.

Recently, though, the scope of censorship has expanded as judges began to issue orders that demand Google wipe out search results not only on a country-specific Google site, but on all of Google. In Canada, for instance, a judge decided to resolve a trademark dispute between two companies by ordering the search giant to purge certain links on Google.com, rather than on Google.ca (where most Canadians go to search). This month, a divided appeals court upheld the ruling.

And in France, regulators ruled this month that Google must apply controversial “right to be forgotten” requests - where people ask to be removed from Google - on a “world-wide” basis. The upshot is that a search result must be ripped not only from Google.fr, but from the entire search engine; a delisting request by Pierre in Paris, for example, would mean the same search result would also disappear for Google users in Portland and Panama too.

Danny Sullivan, a long-time authority on Google, points out at MarketingLand that the recent decrees in France and Canada mean the end of a long-time arrangement under which the company “complied” with local censorship orders - even though anyone could skirt the orders by going to Google.com. Now, censorship really is censorship.

The implications are serious. As legal scholar David Post observes, the Canadian ruling could make the province of British Columbia a hotspot for “censorship tourism” where plaintiffs can obtain removal orders they can’t get at home. (If this sound far-fetched, recall how U.K. courts long operated as a worldwide destination for “libel tourism“).

Also alarming is that more judges could soon follow the example of France and Canada, and begin to issue worldwide orders too - an outcome that could quickly make swiss cheese out of many search listings. Meanwhile, the choice by democratic countries to expand Google censorship is also likely to provide moral cover to places like China and Russia, which systemically stifle free speech.

What will Google do next?

Google so far has said little in public about how it plans to react to the recent world-wide censorship orders in France and Canada. In the latter case, a company spokesperson would only say it is reviewing the decision, which suggests an appeal to the Supreme Court of Canada may be in the works.

People familiar with Google, meanwhile, gave the impression that the company is still weighing its strategy.

“I imagine Google is fairly concerned about both of these, but they've not really said anything that indicates a major freakout, that I've seen,” Sullivan of MarketingLand said by email. He has also pointed out that Google has been getting more aggressive about “redirecting” users from Google.com to the the national versions of the sites.

According to a person close to Google, this move to “redirect” users is part of the company’s attempts to persuade judges and lawmakers that applying any censorship orders on a national level is sufficient. This person, who spoke on condition of anonymity, suggested the company is hoping to demonstrate that, in countries like France and Germany, relatively few people now go to Google.com in the first place - which obviates the need for broader orders.

Given the recent decree in France, however, this strategy appears to be coming up short. The fallback strategy, then, is to employ a more technical solution: Using IP addresses (which reveal a person’s location) to censor Google.com on a country-by-country basis. This would entail Google configuring its search results to detect that a person is in France - and blocking any offending search results accordingly on Google.com - while at the same time displaying the missing results to Google.com visitors in Norway, the United States, and elsewhere.

Google is not employing such measures yet, but comments by the company’s top lawyer, David Drummond, suggest it is willing and able to do so. Speaking in Brussels last November, Drummond told an advisory council that Google can do IP-based censorship, but added that determined people could still use technical measures - presumably VPN’s - to circumvent it (you can see his comments in this video at the 4 hour 27 minute mark).

This raises the question of what Google will do if neither of these measures - redirecting or IP-based censorship of Google.com - placate officials, and judges in France and Canada insist that their orders apply to everyone in every country. If that occurs, Google could either weigh the costs of a contempt-of-court order or otherwise just pull up stakes altogether in those countries, and hope the resulting outrage would lead users to demand a different solution. Or it could comply, and risk seeing its search results gutted as it applied national laws from every direction.

The situation is not at an end game yet: France may back down, and the Canadian Supreme Court may step in. But it’s clear that Google’s choices are getting harder, and the stakes are getting higher.

]]>http://fortune.com/2015/06/21/google-censorship/feed/024. David C. DrummondJeffIf Facebook wants our trust, it needs to explain when and why it censors thingshttp://fortune.com/2015/06/19/facebook-censorship/
http://fortune.com/2015/06/19/facebook-censorship/#commentsFri, 19 Jun 2015 16:03:43 +0000http://fortune.com/?p=1184697]]>Almost every major digital platform, including Google and Twitter, publishes a so-called “transparency report,” in which the company in question lists the number of requests it has gotten from government authorities and legal entities to take down information. Facebook does this too, except that its version isn’t nearly as forthcoming on what exactly it has been asked to remove, and by whom.

For example, according to the Electronic Frontier Foundation, the giant social network doesn’t say anything at all about certain kinds of content takedowns--a lack of transparency that is especially disturbing now that Facebook wants to be a platform for journalism and news distribution.

In a recent post at the EFF blog, the group explains that this is why Facebook failed its recent censorship test, which the EFF applies to all the major platforms. In Facebook’s case, its “government requests” report explained how it “restricted access” to content because of Brazilian court orders, Israeli speech laws, and demands by the governments of Turkey and India, among other things.

All of this is well and good, but if you click through to the U.S. section of the report, there is no category called “content restrictions.” Is that because Facebook didn’t remove or restrict access to any content in the United States? Not at all. In fact, it does so regularly, the EFF says. It just doesn’t have any of the details of those restrictions in what is supposed to be a tell-all transparency report.

One large missing category, the foundation notes, is content created by prison inmates. The social network has a whole process by which the authorities can have content removed simply by filling out a form, and in many cases that has occurred without any proof that the content or behavior was either illegal or breached Facebook’s terms of use (Facebook recently changed the process so that this kind of proof is required). And yet, none of this is mentioned:

“We know for a fact that Facebook processed 74 requests for the California Department of Corrections and Rehabilitation alone in 2014. Between California and the state of South Carolina, we also know Facebook processed more than 700 takedown requests over the last four years. We could file public records requests in all 50 states to learn more, but since Facebook's system allowed prisons to file these requests without creating a paper trail, only Facebook knows how many requests it has complied with nationwide. We believe it may reach into the thousands.”

This isn’t just about prisoners posting on Facebook, as the EFF points out. The fact that Facebook isn’t reporting these takedown requests “raises larger questions about what other kinds of censorship Facebook has been hiding.” Google provides all kinds of information about specific requests from law enforcement agencies, including demands that the search engine remove specific news stories from its search results, or take down YouTube videos that are seen as defamatory.

If Google has been receiving such requests, the EFF says, “we believe it is highly likely that Facebook has received them as well.” And yet, there is no information of any kind in the company’s so-called transparency report. And so we are left to wonder: what else is Facebook not telling us about whose takedown orders it is capitulating to and when?

Photojournalist Jim MacMillan recently posted images of a traffic accident he saw in Boston to both Facebook and the photo-sharing service Instagram (which is owned by Facebook), only to find later that they had been removed without explanation. Facebook officials said they had no record of any such content being removed, but it’s impossible to know for sure whether that’s the case or not. As the EFF notes, the lack of transparency in some aspects of the company’s report makes it difficult to trust that the social network is being totally forthcoming about its behavior.

If Facebook wants to be a media platform that users trust, then it’s going to have to do a better job of explaining exactly when and why it chooses to censor things, and for whom.

]]>http://fortune.com/2015/06/19/facebook-censorship/feed/0Inside The F8 Facebook Developers ConferenceMathewIn Hogan sex tape fight, Gawker shows a courage rare for digital mediahttp://fortune.com/2015/06/13/hogan-sex-tape-gawker-jury/
http://fortune.com/2015/06/13/hogan-sex-tape-gawker-jury/#commentsSat, 13 Jun 2015 13:40:20 +0000http://fortune.com/?p=1174188]]>Gawker Media and ex-wrestler Hulk Hogan are set to square off before a Florida jury over a tawdry sex video. The case is important not only because Hogan wants $100 million, which could ruin Gawker, but also because it highlights how Gawker is alone among new media companies in waging the sort of public interest legal fights that were once second nature for traditional media.

The Hogan case, which goes to trial on July 6 in Pinellas County, Fla., turns on a 30-minute tape that shows the wrestler having sex with the then-wife of his friend. Gawker published an annotated 90-second version of it in 2012 on the grounds that the clip was newsworthy.

The legal background is complicated, but the gist of it is that Gawker would likely win the case--but for the fact the trial is taking place in Hogan’s hometown, and in front of jurors who are unlikely to look kindly on New York-based Gawker and its Oxford-educated founder, Nick Denton.

Gawker may lose before the jury, but would likely win an appeal on First Amendment grounds. The catch, however, is that a Florida state judge could force the company to post a colossal bond until the appeal is decided--wiping out Gawker in the meantime. Denton told Capital New York that there is a roughly 1-in-10 chance that Gawker will face "disaster.”

And as the New York Timesreports, Denton thought about settling, but ultimately decided he would dig in and fight for the First Amendment principle instead.

Denton’s doughty attitude to legal threats (which Gawker also showed while exposing the crack-smoking mayor of Toronto) is similar to what newspapers and traditional media have long displayed. As Adam Liptak has explained, these older media companies financed many of the major free speech fights of the 20th century; they saw paying for litigation as part of their business model, and as a public duty.

But aside from Gawker, other digital media outlets have not been so brave, including well-financed Vox Media. Last month, Vox’s tech site The Verge meekly deleted a contract that formed the basis of a scoop about payments between Sony and Spotify. The only explanation the Verge gave is a note on its website that the item had been removed “at the request of the copyright owner” (i.e. Sony)--a flimsy reason given the newsworthiness of the contract and the slim chance that Sony would actually sue, let alone prevail, in court.

“The New York Times would have told a lawyer telling them to take [the contract] down to fly a kite, and wouldn't have done so,” said George Freeman, a former lawyer at the Times who now works at the Media Law Resource Center. Freeman qualified his statement, though, by saying that facts in legal cases are often more complicated than they seem at first blush.

But in Vox’s case, there appear to be no mitigating facts to explain why it took down the contract, and neither the company nor its lawyer Lauren Fisher responded to repeated requests for comment. In contrast, one imagines that Denton, who is standing up to Hulk Hogan over $100 million, would have rebuffed Sony’s attempt to use questionable copyright claims to influence editorial decisions.

Meanwhile, other big digital newcomers to the media scene, including BuzzFeed and Business Insider, have also been slow to take up the public interest banner long carried by the likes of the New York Times and the Press-Enterprise (a small California paper that, as Liptak explained, took two free speech cases all the way to the Supreme Court in the 1980s).

All of this is why Gawker’s fight with Hulk Hogan, despite the sleazy subject matter, should attract the support of media companies and free speech advocates everywhere. Gawker is the only one among a new generation of media companies that appears ready to stand its ground in the face of legal threats; if it loses, there may soon be no one else who is willing to do so.

Correction: an earlier version of this story referred to the ex-wife of Hogan’s friend. They were married at the time, so the phrase has been changed to “then-wife.”

]]>http://fortune.com/2015/06/13/hogan-sex-tape-gawker-jury/feed/0Nick Denton Gawker 2010JeffWhen do Twitter block lists start infringing on free speech?http://fortune.com/2015/06/12/twitter-free-speech/
http://fortune.com/2015/06/12/twitter-free-speech/#commentsFri, 12 Jun 2015 16:59:54 +0000http://fortune.com/?p=1173379]]>If the early days of the social web were all about increasing the amount of freedom that people had to express themselves, more recent history seems to be about moderating or restricting or circumscribing that freedom--whether it’s Facebook censoring things, or Reddit banning offensive sub-groups like r/fatpeoplehate, or Twitter making it easier for people to share lists of users they have blocked for abuse.

On the one hand, these kinds of measures are clearly necessary. Many users of these services--and particularly women, visible minorities, transgender people, etc.--are routinely harassed and targeted for abuse, as we’ve seen with issues like GamerGate, and platforms like Twitter TWTR have been criticized for not doing enough to protect them. Block lists are clearly an attempt to make up for that.

By adding this feature, Twitter is taking a cue from popular third-party services like BlockTogether, which was created by a former engineer at Twitter. There are even automated account filters or bots that allow users to outsource their blocking. Anyone who makes it onto the list simply never appears in a user’s timeline--in terms of the Twitter network, it’s as though they never existed.

Just as some Reddit users have complained that their free-speech rights are being infringed by the site’s blocking and banning, there are those who argue that Twitter is also encouraging such behavior with its shared block lists. And while it’s true that the First Amendment only applies to governments, not individuals or corporations, there is a point at which it’s reasonable to get concerned about the impact on speech.

“it’s kind of a fraught conversation, no question,” says Jillian York, the director for international freedom of expression for the Electronic Frontier Foundation. “It’s one thing if a block list is public, so it’s transparent, but there are private block lists as well and that’s a little disturbing. I’ve already seen a couple of journalists using them to block people who aren’t even really harassing.”

The risk, York says, is that these kinds of crowdsourced lists could be used in political ways, as a way to “silence specific groups.” In a sense, they could become a new kind of blacklist, in the same way that lists of suspected Communists were used to deny certain people work in Hollywood in the 1940s and ’50s.

As a number of critics of block lists have pointed out, people can have their names added to a list by mistake, or due to an overzealous interpretation of what constitutes abuse or harassment. Since those lists can then be shared and used to fuel automated block bots and other services, appearing on such a list could cause a cascade effect, where that person winds up being tarred unfairly with accusations of abusive behavior.

In at least one case, a prominent feminist who herself had been the victim of a sustained Twitter abuse campaign--British writer Caroline Criado-Perez, whose case was used by many to argue that Twitter’s anti-harassment tools were inadequate--was added to a block list shared by a wide group of users. And as is the case with other crowd-powered tools such as Wikipedia, there isn’t really any means of appeal.

Defenders of the shared block-list approach such as veteran blogger and ThinkUp co-founder Anil Dash argue that no one’s free-speech rights are being infringed in such cases for several reasons, including the fact that private platforms such as Twitter aren’t covered by the First Amendment. They also argue that even if we are committed to free speech as a principle, that doesn’t give anyone a right to be heard.

Critics like MIT Technology Review editor Jason Pontin, however, argue that the whole point of supporting free speech is that we should do so even when those who are speaking are saying something horrible, otherwise the principle is meaningless. As Voltaire’s biographer Evelyn Beatrice Hall put it: “I disapprove of what you say, but I will defend to the death your right to say it.”

The problem, of course, is that tools like Twitter--massive, distributed networks that allow an unprecedented variety of speech from individuals around the world--have never really existed before, and so we don’t know exactly what to do with them or how we should behave. Is Twitter like the village square, as Dick Costolo has said? It sort of is, but then it’s also owned by a corporate entity, which has shareholders and fiduciary duties. And the problem of harassment is a very real one.

One good thing about crowdsourced or shared block lists, York says, is that it is better than Twitter choosing who should be blocked and who shouldn’t. “In general, I think these tools are much better than if we just let the company decide. That would be terrible. At least this is real community policing.” If nothing else, it’s clear that being the “free-speech wing of the free-speech party”--as Twitter has famously described itself in the past--is getting harder and harder.

]]>http://fortune.com/2015/06/12/twitter-free-speech/feed/0Twitter Goes Public On The New York Stock ExchangeMathewReddit bans groups over harassment, raising questions of censorshiphttp://fortune.com/2015/06/10/reddit-censorship-ban/
http://fortune.com/2015/06/10/reddit-censorship-ban/#commentsThu, 11 Jun 2015 02:15:52 +0000http://fortune.com/?p=1170291]]>Online forum Reddit said Wednesday that it has banned five groups dedicated to ridiculing gays, the obese and blacks as part of an effort to curb some of the abuse that the site has notoriously attracted in the past.

The ban, announced on the site by CEO Ellen Pao and other executives, comes as Reddit wrestles with how to make the site more mainstream while also preserving the free-wheeling community discussions that have made it popular.

The banned groups, known as sub-reddits, include two dedicated to criticizing fat people as well as three other forums where people attacked blacks, gays, or transgender people. The most popular of the five appears to have been r/fatpeoplehate, which Reddit says had more than 5,000 members.

Some Reddit members reacted angrily by accusing the site of heavy-handed and arbitrary decision-making. In a comment just below the announcement of the ban, a member posted a list of other groups dedicated to abusive and taboo topics that remained up. Fellow members responded with substantial support, or “upvotes” in Reddit lingo. Meanwhile, right wing news sites accused Reddit and its CEO of censorship.

Reddit founder Alexis Ohanian, a well-known figure in the tech world, defended the site’s decision. In a post on Twitter, he pointed to a comment by another Reddit member to explain when harassment becomes unacceptable.

“When we are using the word “harass”, we’re not talking about “being annoying” or vote manipulation or anything,” the comment said. “We’re talking about men and women whose lives are being affected and worry for their safety every day, because people from a certain community on reddit have decided to actually threaten them, online and off, every day.”

Law professor James Grimmelmann, who writes frequently on Internet issues, observed on Twitter that the decision marked a move away from Reddit’s original commitment to unfettered free speech. But he noted the problem of harassment also presented a philosophic challenge.

Wednesday isn’t the first time Reddit has banned groups for violating abuse guidelines. Last year, after a public outcry over hackers posting private nude photographs of celebrities, Reddit shut down a forum called “the fappening” where many of the images appeared.

Reddit may also be under pressure to combat abuse after the site raised $50 million in funding last year from high-profile venture capital firm Andreessen Horowitz and others. The investors will eventually expect the site, which is independent operated, but owned by the same holding company as magazine giant Conde Nast, to attract more mainstream advertisers that would otherwise shy away from being associated with harassment.

]]>http://fortune.com/2015/06/10/reddit-censorship-ban/feed/0subreddit-bannedJeffShould convicts be on social media? Facebook stands up for prisoner accountshttp://fortune.com/2015/06/05/facebook-prison-social-media/
http://fortune.com/2015/06/05/facebook-prison-social-media/#commentsFri, 05 Jun 2015 21:25:11 +0000http://fortune.com/?p=1162434]]>Facebook has made an important change about how it treats users who are in prison. While past policy allowed prison authorities to delete inmates’ accounts effectively at will, the social network now requires them to explain why the prison wants to erase an account.

The change coincides with a new debate over when, or if, prisoners should be allowed to use the internet and social media. Recent news accounts have described how smartphones have become a new form of contraband, and how inmates in some states have been put into solitary confinement for using Facebook FB.

Facebook’s change in policy, which took place at some point in the spring, came after the Electronic Frontier Foundation (EFF) called attention to a process that allowed prisons to remove accounts simply by submitting a notice. As a result, profiles--and any photos or comments they contained--simply vanished at the whim of prison officials.

The EFF, which has a full account of the changes, commended Facebook for the new procedures, but said the company should start including deleted prisoner accounts in its semi-annual Transparency Report, a document that reports on government censorship.

For prisons and Facebook, the issue remains a complicated one. Inmates have reportedly used social media to intimidate witnesses, and to carry out ongoing criminal ventures. But on the other hand, from a social standpoint, a blanket plan on Facebook might be cruel and counter-productive.

“The Internet and social media are fundamental to the economy these days--everybody uses it,” said Dave Maass of the EFF by phone. He added that social media is now integral to many jobs, meaning that inmates who have no idea how to use them are less likely to integrate into the workplace upon release.

Meanwhile, the issue is still new enough that courts have yet to significantly define whether laws or policies than ban Internet use by prisoner are constitutional. Ironically, the uncertainty comes even though law enforcement has for years used people’s activities on Facebook and other social media platforms as evidence to convict them.

One issue that may remain contentious for Facebook are terms service that let the company delete an account if a user allows a third party to access it. According to Maass, this policy can be unfair to inmates and others, including those with literary issues, who need friends or family to help them online.

The case involved Anthony Elonis, a Pennsylvania man who used Facebook FB to make a series of violent rants against his wife and others, often citing the rapper Eminem and using hip-hop lyrics. He claimed his rants did not amount to “true threats,” and that his comments were jokes and a form of free speech protected by the First Amendment.

The court sided with Elonis, finding that simply using a reasonable person standard was inadequate for conviction; instead, prosecutors must show that the writer in question actually meant the words to be threatening.

“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state. That understanding "took deep and early root in American soil" and Congress left it intact here,” wrote Chief Justice John Roberts for an 8-1 majority.

The case attracted widespread interest because it required the court to define limits on when internet speech can become illegal. Free speech advocates argued that criminalizing Facebook rants could create a chilling effect by restricting the sort of everyday hyperbole people engage in all the time; others pointed to situations like GamerGate, which involve system online threats against women, to argue criminal restrictions can be appropriate.

In the Elonis ruling, however, Chief Justice Roberts declined to set down sweeping policy statements about free speech and internet. Instead, he decided the case in a more narrow, legalistic fashion by noting that the law in question did not explain what mental state should be required for conviction.

In a stinging rebuke, Justices Samuel Alito disagreed with Roberts’ approach, saying the Court chose to duck a difficult issue.

“The Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction […] This case squarely presents that issue, but the Court provides only a partial answer,” wrote Alito, adding that for lower courts, “This will have regrettable consequences.”

While Alito supported the decision to reverse the conviction, he did not agree with Roberts’ reasoning, and suggested that a recklessness standard should apply instead.

The outcome is likely to prove disappointing to a variety of groups who had hoped the Supreme Court would use the case to address issues like internet free speech, and online hate directed against women. Indeed, the facts of the case - which involved Elonis writing fantasies about killing FBI agents and school shootings - appeared to be tailor made for such a ruling. And the hearing itself involved the Supreme Court Justices quoting Eminem, and addressing threats to spouses.

As it turns out, those harder questions will have to wait another day for a full resolution. You can read the opinion below.

This story was updated at 2:30pm to make clear that Alito dissented only in part, and he supported reversing the conviction. An earlier version incorrectly suggested Alito dissented in full.

]]>http://fortune.com/2015/06/01/facebook-free-speech-supreme-court/feed/0rsz_facebookJeffReddit CEO: We are not a ‘completely free-speech platform’http://fortune.com/2015/05/20/reddit-free-speech-ellen-pao/
http://fortune.com/2015/05/20/reddit-free-speech-ellen-pao/#commentsWed, 20 May 2015 14:26:52 +0000http://fortune.com/?p=1129304]]>Reddit, the self-described “front page of the Internet” isn’t a place where you can post anything you want without consequences, its new interim CEO says.

Ellen Pao told NPR this week that “it’s not our site’s goal to be a completely free-speech platform. We want to be a safe platform and we want to be a platform that also protects privacy at the same time.”

Pao’s comments are likely upset a number of “Redditors,” who see the largely anonymous platform as a place where any opinions or material can be shared, with few exceptions--child pornography and other illegal materials, for existence. Reddit users, fairly or not, have a reputation for leaning libertarian when it comes to the free flow of information and ideas.

“The question is whether it would make them fear for their safety, or the safety of those around them or where it makes them feel like it’s not a safe platform,” she said. “Somebody expressing ideas that aren’t consistent with everybody’s views is something that we encourage.”

]]>http://fortune.com/2015/05/20/reddit-free-speech-ellen-pao/feed/0Ellen Pao Kleiner Perkins Caufield & Byers headshotbgfortuneIn win for Google, court lifts ban on ‘Innocence of Muslims’ videohttp://fortune.com/2015/05/18/google-video-ban-court/
http://fortune.com/2015/05/18/google-video-ban-court/#commentsMon, 18 May 2015 17:28:13 +0000http://fortune.com/?p=1126091]]>Everyone from technology companies to Hollywood to free speech advocates breathed a sigh of relief on Monday after a California appeals court struck down a controversial order that required Google to ban an offensive video from appearing on YouTube.

“The appeal teaches a simple lesson--a weak copyright claim cannot justify censorship in the guise of authorship,” wrote the court in a 10-1 ruling that struck down the ban.

The case turned on a 14-minute film titled “Innocence of Muslims,” which was produced in 2013 by an amateur film-maker, and contained offensive dialogue that led to riots, and a call by some clerics for the death of those involved.

In response, actress Cindy Lee Garcia, who appeared briefly in the film, asked for an order requiring Google GOOG to suppress the video on YouTube, claiming that she had a copyright in her performance.

While a court initially dismissed Garcia’s request, two of three judges on an appeals court panel agreed to grant an injunction in early 2014 and, for a brief period, imposed a gag order that forbid Google from even discussing the ban.

News of the ruling led to a massive pushback by Google and civil liberties groups, who argued that the ruling was a dangerous prior restraint on free speech. Meanwhile, Hollywood also expressed alarm over the ruling since it was based on a principle that individual actors have a separate copyright in their performance--raising the possibility that almost anyone involved in a movie could claim ownership of the whole thing.

Monday’s ruling is a resounding victory for those critics. It makes hash of the idea that Garcia can claim a copyright in the first place, noting that she does not own a “work” and that the U.S. Copyright Office had refused her request to register her performance.

The majority opinion also acknowledges the film’s role at the center of a global controversy, and the importance of the public being able to see what the fuss is about:

[The initial ruling] also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film--based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

The opinion also declared that the original ruling was wrong to say that Garcia’s interests outweighed Google and the public’s right to free speech. The majority did express sympathy for Garcia’s plight, however, noting that she had been duped into appearing in the film on false premises, and that the film-maker dubbed over her original lines to replace them with words insulting the Prophet Mohammed.

The sole dissent came from Judge Alex Kozinski, who had written the initial ruling siding with Garcia. In a rebuke to the majority, he wrote:

Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won't be a party to it.

You can read the entire judgment below (I’ve underlined some of the important bits). The video itself has yet to resurface on YouTube.

]]>http://fortune.com/2015/05/18/google-video-ban-court/feed/2'Innocence of Muslims' screenshotJeffCan Reddit find a way to become a business without losing its soul?http://fortune.com/2015/05/15/reddit-freedom-harassment/
http://fortune.com/2015/05/15/reddit-freedom-harassment/#commentsFri, 15 May 2015 16:32:58 +0000http://fortune.com/?p=1123362]]>For the better part of the decade or so since it was founded, Reddit has thrived as a kind of quasi-anarchy: users can post pretty much anything and frequently do, including copyright violations and all manner of offensive imagery and commentary. Those users can even become moderators--which gives them a huge amount of power over the content that is posted--without asking permission from anyone. This freedom has made the site one of the most popular online communities around (it had 71 billion pageviews in 2014), but it doesn’t make it a terribly good business. Reddit’s big challenge is to somehow find a way to combine both freedom and the need to control the content its users post. But is that even possible?

On Thursday, the company’s executive team--including co-founder and chairman, Alexis Ohanian, CEO Ellen Pao and Jessica Moreno, the site’s head of community--announced that they are taking a firm stand against the harassment and negative behavior that often occurs on the site, especially involving women. In a blog post, they said that while the company values “privacy, freedom of expression and open discussion,” a recent survey of users shows that the bad behavior by a few is driving people away: the number one reason existing users don’t recommend the site to friends is they want to avoid exposing them to hate and offensive content.

“We've always encouraged freedom of expression by having a mostly hands-off approach to content shared on our site, [but] instead of promoting free expression of ideas, we are seeing our open policies stifling free expression; people avoid participating for fear of their personal and family safety.”

It should be noted that the new impulse to control this kind of behavior doesn’t just come from a realization that it is affecting users, but because Reddit needs to start thinking like a business instead of an online commune. The company raised $50 million in venture-capital financing last year, from a group that included leading Silicon Valley VC Andreessen Horowitz, and that brings with it the expectation that Reddit will do things like make money. Copyright violations and rampant sexual harassment aren’t much help when that’s your goal, and advertising is your primary means of revenue generation.

Reddit has already made some changes over the past year in an attempt to cut down on avenues for harassment, including new policies related to “revenge porn,” a specific subset of Internet behavior in which ex-boyfriends and spouses post naked photos of their former wives and girlfriends. The site also took down an entire forum or “sub-Reddit” devoted to pictures of famous actresses and other female celebrities that were stolen from their iCloud accounts and uploaded en masse to a forum called The Fappening.

In the past, Reddit has allowed similar content to survive on the site because of its commitment to free speech and in particular the value of anonymity--something Ohanian has spoken about a number of times. Last year, he talked about why he invested in Secret, one of a number of anonymous apps, saying: “Like all tools, this new publishing technology comes down to how we as individuals use it, but I'm heartened by every post I see that allows someone to share something about themselves that they'd never have been able to with their name attached... anonymity enables us to be truly honest, creative, and open.”

Ohanian and others at Reddit have also talked about how only a small number of users engage in the kind of harassment and bad behavior they want to squash--the blog post says the new rules “will have no immediately noticeable impact on more than 99.99% of our users.” But how can the site find and remove or block these bad actors if the vast majority of Reddit accounts are anonymous? And how is it going to define harassment or bad behavior so that it protects users but doesn’t impact free speech? In their post, the executive team say they will define harassment as:

Systematic and/or continued actions to torment or demean someone in a way that would make a reasonable person (1) conclude that reddit is not a safe platform to express their ideas or participate in the conversation, or (2) fear for their safety or the safety of those around them.

They also say that they want to “prevent attacks against people, not ideas.” In other words, they want to exclude ad hominem attacks that are aimed at individuals, and subject them to threats or other harassing behavior, but they don’t want to stop people from challenging or attacking ideas. This is a noble statement of purpose, but it’s a lot harder to do than it is to say, as a number of Reddit users have pointed out. How does the site define what constitutes torment, or conclude that something is demeaning? Do the users in question determine that, or do Reddit administrators?

Online communities like Reddit are a complicated and fragile ecosystem--trying to change one aspect of them can have a host of unintended consequences, as Reddit’s predecessor Digg found out to its detriment. In trying to attain a worthwhile goal of protecting users, the site could wind up trampling on the kind of free-wheeling approach that helped it become a huge online community in the first place. In other words, it might become a business, but only by losing its soul. Would the trade-off be worth it?

]]>http://fortune.com/2015/05/15/reddit-freedom-harassment/feed/0Reddit headquarters 2014MathewBoston’s ban on anti-Olympics talk is unproductivehttp://fortune.com/2015/01/22/boston-workers-olympics-speech-ban/
http://fortune.com/2015/01/22/boston-workers-olympics-speech-ban/#commentsThu, 22 Jan 2015 22:17:42 +0000http://fortune.com/?p=957284]]>If you work for the City of Boston and you're not 100% keen on the idea of the city hosting the 2024 Olympic games--think of the crowds! the construction!--Mayor Martin J. Walsh wants you to keep all those feelings to yourself.

Boston workers and residents learned this week that Walsh has signed an agreement with the United States Olympic Committee that bans City of Boston employees from speaking negatively about the Games or the bidding process. The decree says:

The City, including its employees, officers, and representatives, shall not make, publish or communicate to any Person, or communicated in any public forum, any comments or statements (written or oral) that reflect unfavorably upon, denigrate or disparage, or are detrimental to the reputation or statute of, the [International Olympic Committee], the [International Paralympic Committee], the USOC, the IOC Bid, the Bid Committee or the Olympic or Paralympic movement. The City, including its employees, officers and representatives, shall each promote the Bid Committee, the USOC, the IOC Bid, U.S. Olympic and Paralympic athletes and hopefuls and the Olympic and Paralympic movement in a positive manner.

The decree nears iffy legal territory because it's so broad and seems to apply to all city employees, says Curtis Summers, a labor and employment lawyer from the Husch Blackwell firm. Employees at private companies have few free speech rights except for those related to improving their workplace and guaranteeing their rights as workers. But the Supreme Court in a June 2014 decision clarified the limits public employers can place on their workers' speech. The court ruled that speech outside the scope of an employee's duties is protected.

So, Summers says, if a school employee in Boston says that she doesn't want to deal with tax increases related to the Olympics and the city tries to enforce its decree against her, that could be a violation of her free speech rights. On the other hand, if an employee in the city's public relations office speaks ill of the Olympics bid, Boston would likely have more enforcement power against those comments since the PR employee's main responsibility is to speak publicly on behalf of the city.

“The basic principal is that public employees still have the First Amendment right to speak out as citizens on matters of public concern so long as it doesn’t disrupt their ability to do their jobs,” says Sarah Wunsch, deputy legal director of the American Civil Liberties Union of Massachusetts.

Mayor Walsh defended the decree to The Boston Globe, saying that it's not his intention to cripple open debate about the Olympics and that he has no plans to reprimand or punish city workers for voicing their opposition to the bid for the 2024 Games. When asked why he signed the decree if that was the case, Walsh said that the agreement was "boilerplate." The USOC has said that the non-disparagement language is typical of contracts between the organization and bidding cities.

“You can call it boilerplate, but boilerplate has meaning,” Wunsch says. The decree will have a chilling effect on free speech, she says, because it frames supporting the Olympics as positive and being critical of the bid as negative. “If you’re a city employee, you know what [the mayor] thinks.”

The mayor's office did not return Fortune's request for comment on the decree’s enforcement and its potential infringement on employees' First Amendment rights. The USOC also did not immediately respond to a request for comment.

While the legality of the decree may be in question, here's something that's not: it's usefulness.

If the goal of Boston's ban on Olympic smack talk is to breed the cooperation needed to win and put on a successful Olympic Games, encouraging employees to bottle up their grievances could deliver the exact opposite effect.

“Having a way to deal with dissent is a concern for companies more broadly; they want people to disagree so they can come up with better solutions and build consensus,” says Adam Cobb, a professor at The Wharton School. The Boston ban “has the potential to be counterproductive," he says. "If you don't let [dissenters] voice their concerns, they'll just sit there mad or quit." Those left behind will simply be yes-men and yes-women. Sure, they will all be on the same page. And they’ll come up with nothing but the same solution for the same problem, again and again.

]]>http://fortune.com/2015/01/22/boston-workers-olympics-speech-ban/feed/0Boston 2024 artist renderingclairezillman11 judges to rehear case between Google and actress with fatwa on her headhttp://fortune.com/2014/12/11/google-appeals-in-fatwa-case/
http://fortune.com/2014/12/11/google-appeals-in-fatwa-case/#commentsThu, 11 Dec 2014 19:16:42 +0000http://fortune.com/?p=899139]]>In an appeal being heard by 11 federal judges in Pasadena on December 15, Google GOOG says a court order that forced it to take down a notorious anti-Islam film trailer from its YouTube unit last February violated fundamental free speech, free Internet, and copyright principles.

The search giant's arguments are being supported by dozens of amici curiae--interested outside parties--who are also up in arms over the precedent. These include Facebook FB, Twitter TWTR, Pinterest, Tumblr, and the Electronic Frontier Foundation (who say ruling violates protections afforded Internet publishers by the Digital Millenium Copyright Act); The New York Times Co NYT, NPR, Public Citizen, and Techdirt publisher Floor64 (claiming it violates the First Amendment and the Communications Decency Act); Netflix NFLX and a bevy of documentary filmmakers, including Morgan (Super-Size Me) Spurlock (upset about its copyright holdings, which would "wreak havoc" with their business models); and a couple dozen legal scholars (incensed about all of the above).

Of course, none of the folks attacking the ruling has a fatwa on his head. Cindy Lee Garcia, the actress who brought the suit, does. She's got amicus support from the Screen Actors Guild-American Federation of Television and Radio Artists and several other actors and musicians guilds.

The case is proof positive of the hoariest of old lawyers’ saws: Hard cases make bad law. Garcia v. Google is a classic of the genre.

Garcia says she was tricked into appearing in the infamous movie now known as The Innocence of Muslims, which depicts the Prophet Mohammed in the vilest of terms. When a 14-minute trailer of it was released on YouTube in Arabic translation on September 11, 2012, it triggered deadly protests in Cairo and other Muslim cities throughout the world.

It may or may not also have caused demonstrations in Benghazi, Libya, which preceded an attack on the U.S. consulate there in which four died, including U.S. Ambassador J. Christopher Stevens. The video's perceived connection to that event--accurate or not--helped generate about 40 million clicks for the YouTube video, with many viewers doubtless assuming that Garcia was a willing participant in the incendiary, and, to many, blasphemous, propaganda reel.

Last February, in a ruling that stunned much of the legal establishment, Garcia persuaded a 2-1 majority of the U.S. Court of Appeals for the Ninth Circuit to issue a preliminary injunction ordering Google's YouTube to take down all traces of the trailer and to patrol its site going forward to prevent any repostings. The ruling, written by the outspoken, ordinarily libertarian-leaning Alex Kozinski, found that Garcia was likely to win her claim that the trailer violated her copyright in her acting performance, a 5-second sliver of which had been included on the trailer.

Due to concerns among Kozinski's Ninth Circuit brethren and sistren about whether he got this one right, an 11-judge panel of the same court is now set to rehear the case Monday. Google's case will be argued by former Acting Solicitor General of the United States Neal Katyal, who is now with Hogan Lovells. Garcia's will be argued by Cris Armenta, a Los Angeles solo practitioner who mainly represents entertainment industry clients.

Here's Garcia's side of the story, according to a declaration she filed in court and my telephone interview with her lawyer, Armenta. Back in July 2011, Garcia, a Los Angeles grandmother and ordained minister who was struggling to support herself and her severely disabled husband, answered a casting call. She read for a part in an adventure movie set in Arabia 2000 years ago, to be called Desert Warriors. She got it, and then spent three-and-a-half days filming. She was paid about $500 by a producer she then knew as Sam Bacile.

The following summer, Garcia checked back with Bacile about the status of the film, and learned that he'd just posted a trailer of it on YouTube.

To her horror, the film was an assault on the character of the prophet Mohammed. In the course of it, a brief clip showed Garcia acting a line that in the original script had read: "Is George crazy? Our daughter is but a child." In this version, though, her line was dubbed over, so that she now appeared to be saying, "Is your Mohammed a child molester?"

The video was getting no attention online at the time, so Garcia, who was still struggling financially, took no immediate action.

In September, though, another version of the trailer, now dubbed in Arabic, was posted on YouTube. This one was was soon replayed on Egyptian television, and all hell broke loose. On September 19, an Egyptian cleric issued a fatwa calling upon "the Muslim youth in America and Europe … to kill the director, the producer, and the actors and everyone who helped and promoted the film."

Garcia began receiving death threats, as well as threats to rape her daughter. She changed home addresses and her place of work. She was not alone in taking the death threats seriously, she asserts in the declaration. When she visited New York that month, Port Authority police forbade her from entering the LaGuardia airport terminal, arranging instead for a squad car to take her directly to her plane as it waited on the tarmac.

Google removed the Innocence of Muslims clips from its local YouTube sites in countries where it was outlawed, including Indonesia, India, Malaysia, Russia, Saudi Arabia, and Turkey. Though the video wasn't forbidden in Egypt or Libya, Google temporarily blocked it there, too, citing "difficult circumstances."

In the U.S., however, it refused to take it down, explaining that that it met YouTube's "community guidelines.” Google chairman Eric Schmidt explained at a press conference that month: "We believe the answer to bad speech is more speech."

Garcia sued Bacile, whose real name, she had come to believe, was Nakoula Basseley Nakoula. Nakoula had been convicted of federal bank fraud in February 2010, for a scheme involving taking out numerous credit cards under diverse names and social security numbers that didn't belong to him. In September 2012 he told a federal court that his real name was Mark Basseley Youssef, so we'll use that one here.

Youssef is a U.S. citizen, according to court records, and is an Egyptian Christian by ethnic background, according to his lawyer, Leonard Chaitin. Youssef denies misleading Garcia, Chaitin says in an interview, but Chaitin declines to detail Youssef's defense at this time.

In any event, suing Youssef--for fraud and other torts--couldn't get Garcia what she really wanted, which was to pull down the offensive trailers.

Only YouTube could do that, but it seemed to be shielded by two layers of adamantine legal protection. First, the First Amendment usually protects the right of anyone--be it Youssef or YouTube--to publish offensive speech, no matter how odious.

Second, the Communications Decency Act grants broad immunity to Internet publishers in particular, like YouTube, against liability stemming from content posted by their users. So even if Youssef was found to have commited some tort against Garcia--like fraud or defamation, say--YouTube would be protected by the CDA. The CDA encourages the creation of Internet forums for user-generated content, and it protects financially strapped startups against crushing legal costs that might otherwise strangle them in their cradles.

The narrow exception is that Internet publishers can be forced to take down copyright infringing content. But even in that case Internet publishers' obligations are highly circumscribed by the Digital Millennium Copyright Act of 1998 (DMCA). Under the DMCA, for instance, publishers only need to take down links that copyright holders specifically identify; they don't need to monitor their sites proactively to prevent infringing material from getting posted in the first place.

On September 24, Garcia filed the first of eight DMCA takedown notices, claiming she had a copyright interest in her 5-second performance in the trailer. Her lawyer, Armenta, also petitioned the U.S. Copyright Office to register Garcia's performance.

Google and the Copyright Office both rebuffed Garcia, for basically the same reason. There's no such thing, the copyright office said, as a copyright interest in an actor's five-second performance captured in a snippet of a movie. "A motion picture is a single integrated work," it wrote. The copyright in a movie belongs to its "author"--which is ordinarily either the studio, the producer, the director, or the screenwriter.

In September 2012 Garcia filed a copyright suit against Google and YouTube in federal court seeking a preliminary injunction ordering takedown of the trailers. In late November, in an unpublished, 3-page order, U.S. District Judge Michael W. Fitzgerald perfunctorily denied the injunction without a hearing, finding Garcia was unlikely to win her claim.

Fitzgerald found that he didn't need to decide whether Garcia had any copyrightable interest in her performance, because, even assuming she did, she'd granted an "implied license" to Youssef to use her performance when she accepted money to act in Youssef's film.

In February, the split Ninth Circuit panel overturned Fitzgerald in the stunning ruling by Kozinski. He rejected Fitzgerald's "implied license" theory, because Youssef had defrauded Garcia about the nature of movie she was going to be in. "The film differs so radically from anything Garcia could have imagined when she was cast," Kozinski wrote, "that it can’t possibly be authorized by any implied license she granted Youssef."

This part of Kozinski’s ruling has the documentary filmmakers bent out of shape, since they often rely on the "implied license" theory to protect themselves from assertions of various rights by the people they film. Though they don't quite admit the obvious--that they frequently mislead the subjects of their films about how unflatteringly they're going to be portrayed in the finished movie--they express the problem this way: "Often ... the narrative does not fully materialize until the filmmaker is in the editing room. Filmmakers regularly need to 'radically' alter the narrative to tell the most truthful or compelling story.'"

Be that as it may, Kozinski's rejection of the "implied license" theory meant he had to squarely address the underlying question: Can an actor have a separately assertable copyright in her 5-second performance in a movie? Kozinski answers yes, though he admits that the question is "fairly debatable." He then continues, opaquely: "We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that ... Garcia is likely to prevail based on the record and arguments before us."

That part of his ruling has Netflix in a tizzy. "If the panel opinion stands," its lawyers write, one DMCA takedown notice “from the actor who played Juror Number Four could be enough to justify removal of My Cousin Vinny from Netflix."

Kozinski's concession that his copyright ruling was "fairly debatable" lies at the root of a chorus of complaints from media defendants, like the Los Angeles Times. If it's not certain that any copyright infringement is even going on, then what really seems to be happening here is that the court is suppressing a message it finds offensive under the guise of a copyright ruling. That would constitute "a direct restraint on controversial speech," their lawyers argue, which is the core of what the First Amendment prohibits.

The media amici have another beef with Kozinski, too. For the first week that his ruling was in effect, it was secret! He issued a gag order forbidding Google and Garcia from even telling the public that a decision had been rendered. He did this so that users wouldn't make copies of the trailer and repost them elsewhere--although, obviously, in the more than 14 months since the trailer had become notorious, this had already widely occurred.

Finally, when Kozinski lowered the boom, he issued one of the broadest takedown orders every decreed. Apparently miffed that Google wouldn't take down the trailer in the exercise of its own discretion--as it did in Libya and Egypt, "due to difficult circumstances"--he required that YouTube not only scrub its sites worldwide of the trailer, but also that it proactively patrol its sites going forward to make sure that no one uploaded new versions of the film or trailer. (He made an exception for any version omitting Garcia's image.) This is the part of the ruling that has Facebook, Twitter, Pinterest, and the EFF so concerned. They say the order conflicts with the DMCA, which contemplates that Internet publishers will only have to passively and reactively respond to takedown requests for specifically identified offending files. "It puts Google in the role of a copyright cop," write lawyers for the EFF, "affirmatively monitoring user speech for signs of alleged infringement."

Kozinski's ruling begins to looks like a cardboard duck in a shooting gallery. On the other hand, it's a duck that's bought Garcia some time--time during which, perhaps, emotions have had a chance to calm and memories, to fade.

Maybe that was the point. Hard cases make bad law.

Correction: An earlier version of this misspelled the name of Garcia’s lawyer, M. Cris Armenta. I regret the error.

]]>http://fortune.com/2014/12/11/google-appeals-in-fatwa-case/feed/0Cindy Lee Garcia Innocence of Muslims 2012rparloff2013Activision Blizzard enlists Rudy Giuliani to fight Noriega’s ‘Call of Duty’ lawsuithttp://fortune.com/2014/09/22/activision-enlists-giuliani-noriega-call-of-duty-lawsuit/
http://fortune.com/2014/09/22/activision-enlists-giuliani-noriega-call-of-duty-lawsuit/#commentsMon, 22 Sep 2014 15:21:33 +0000http://fortune.com/?p=795392]]>Video game publisher Activision Blizzard has called in former New York City mayor Rudy Giuliani to help fight off a publicity rights lawsuit filed against the Santa Monica company by Panama’s former dictator, Manuel Noriega.

Noriega sued Activision Blizzard ATVI in Los Angeles in July, claiming the company used his name and likeness without his permission in its popular game “Call of Duty: Black Ops II.” The company said Monday that Giuliani, who is now a name partner at the law firm Bracewell & Giuliani, will serve as the company’s co-counsel as it plans to file a motion to dismiss Noriega’s lawsuit later today on the grounds that the depiction of the former military dictator in the game is a protected right to free speech.

The former mayor and U.S. attorney called Noriega’s lawsuit “absurd” in a statement saying that Activision Blizzard is seeking “to dismiss an outrageous lawsuit by one of the worst criminals of the last 50 years, Manuel Noriega,” who Giuliani calls “a minor figure” in the video game. The company is also being represented by the law firm Munger, Tolles & Olson.

Noriega, who was removed as Panama’s military dictator in 1989 following a U.S. invasion, claims in his lawsuit that the company portrayed him as “a kidnapper, murderer and enemy of the state” in the video game in order to boost sales. Noriega spent almost two decades in prison in the U.S. after being convicted on multiple counts of drug trafficking, racketeering and money laundering in 1992.

Noriega’s attorney did not immediately respond to a request for comment.

Giuliani and the company argue that, if Noriega’s lawsuit were to be successful, it would pave the way for a deluge of lawsuits from the families of other historical figures attempting to block depictions in works of historical fiction, including movies like Forrest Gump and television shows like “Saturday Night Live.”

Historical figures, or their families, “could sue anytime they were mentioned, not just in a game, but in a movie or a book,” Giuliani said in a statement. “Games, movies and books are considered the same, according to the United States Supreme Court for free speech purposes, so it would destroy to a very, very large extent the creative genre of historical fiction.”

In July, actress Lindsay Lohan sued Rockstar Games, alleging the video game company appropriated her likeness without her permission for a character in its hugely popular game “Grand Theft Auto V.”

Of course, this is not the first time that Giuliani and Noriega have shared headlines. In 1989, several months before the U.S. invasion of Panama, Giuliani’s first campaign to be New York City’s mayor was plagued by accusations from his Republican primary opponents that his law firm at the time, White & Case, had ties to Noriega. White & Case admitted that the country of Panama was a client of the firm, but claimed that no work had been done specifically for Noriega. Giuliani prevailed in the Republican primary that year, but later lost in the general election to David Dinkins.

Noriega is seeking lost profits from the game, as well as damages. “Call of Duty: Black Ops II” hauled in over $1 billion in sales within two weeks of its November 2012 release. Activision Blizzard has a market capitalization of more than $15.5 billion. The company’s shares were down almost 0.5% on Monday morning.

Editor’s note: An earlier version of this article incorrectly stated that Activision Blizzard makes the popular “Halo” video game series, which was actually created by Bungie. The story has been updated to reflect this mistake.

]]>http://fortune.com/2014/09/22/activision-enlists-giuliani-noriega-call-of-duty-lawsuit/feed/0General Manuel Antonio Noriega speaks 20huddlestontomCorporations have free speech rights, except when it comes to meathttp://fortune.com/2014/07/31/free-speech-meat-producers/
http://fortune.com/2014/07/31/free-speech-meat-producers/#commentsThu, 31 Jul 2014 14:22:31 +0000http://fortune.com/?p=758407]]>Corporations have a penchant for using the First Amendment to slip through the grasp of new regulations.

R.J. Reynolds Tobacco Company RAI, for instance, used it to argue against a Food and Drug Administration requirement that would have plastered grisly images of smoking's side effects on cigarette packages. Such labels constituted compelled speech, Reynolds argued--successfully.

Likewise, ratings agencies Standard and Poor's and Fitch hid behind the First Amendment when it was criticized for giving high ratings to worthless securities in the run up to the financial crisis. They said that the ratings were based on opinion and therefore constituted protected speech.

So when Congress passed legislation imposing new rules requiring meat producers to attach country of origin labels to their products, the First Amendment defense must have looked like an attractive method for the industry to wiggle out of the regulation. In July 2013, industry groups representing livestock producers, feedlot operators, and meat packers gave it a shot.

Led by the American Meat Institute, the groups filed a lawsuit against the United States Department of Agriculture that claimed that requiring producers to use labels that identified the countries in which its animals were born, raised, and slaughtered, and to specify if meat in a single package was "co-mingled" from different countries of origin represented compelled speech and violated the First Amendment. The meat industry argued in its complaint that because there was no "legitimate justification" for the born, raised, and slaughtered labels, and because the new rules would "impose significant burdens on and radically restructure the way meat is produced and packaged in this country," the regulation violated the First Amendment, which prohibits compelled speech in the absence of substantial governmental interest.

The government, meanwhile, said its interest in allowing consumers to know the origin of the food they eat should be "beyond dispute." The meat industry "cannot and do[es] not provide any basis for second-guessing the considered judgment of Congress ... that country-of-origin labeling is warranted."

Despite what seems like a long line of corporations winning such cases, a divided panel of 11 judges in the United States Court of Appeals for the District of Columbia Circuit this week ruled against the meat producers after finding that the government interest in informing consumers and isolating potential food contamination superseded the industry's First Amendment claims.

"Simply because the agency believes [the meat industry] has other, superior means to protect food safety doesn't delegitimize a congressional decision to empower consumers to take possible country-specific differences in safety practices into account,” the court majority said. Nor does such a belief “undercut the economy-wide benefits of confining the market impact of a [potential] disease outbreak."

The court majority acknowledged that its decision seemed to fly in the face of previous rulings--specifically the Reynolds Tobacco case over the graphic cigarette warnings labels, which was decided by a three-judge panel in the same circuit court in 2012. The deciding judges in that case sided with Reynolds by ruling that the government interest didn’t trump Reynolds’ First Amendment rights since the labeling requirements weren’t aimed at preventing deception.

The court majority in the meat label case, meanwhile, provided more leeway in what sorts of government interest took precedence over a corporation's First Amendment rights; they ruled that government interest could reach beyond the prevention of deception to such objectives as consumer knowledge and containment of food-borne illness outbreaks.

The court majority in the meat label case explained its decision bluntly: "To the extent that other cases in this circuit may be read as holding to the contrary...we now overrule them."

That combative language could embolden regulators to require similar disclosures, says Joshua Turner, an attorney at Wiley Rein who specializes in federal and state regulation. At the very least, he says, it sets the stage for a federal regulation-versus-corporate free speech showdown in the Supreme Court.

]]>http://fortune.com/2014/07/31/free-speech-meat-producers/feed/0ground beefclairezillmanPublic employees gain free speech Supreme Court victoryhttp://fortune.com/2014/06/19/public-employees-supreme-court-free-speech/
http://fortune.com/2014/06/19/public-employees-supreme-court-free-speech/#commentsThu, 19 Jun 2014 15:53:08 +0000http://fortune.com/?p=722546]]>The U.S. Supreme Court under Chief Justice John Roberts has gained a reputation for defending the First Amendment rights of corporations. On Thursday, it recognized that those same rights apply to public employees when they give sworn testimony.

In a unanimous decision written by Justice Sonia Sotomayor, the court ruled that public employees who give sworn testimony that falls outside their everyday job duties are protected against retaliation by the First Amendment.

The decision came in a case brought by Edward Lane, a former director of a program for youth at a community college in Alabama, against his former boss Steve Franks. Lane claimed that Franks fired him after Lane delivered sworn testimony against a former colleague who was being investigated for and was later charged with fraud.

Lane sued Franks, claiming that his firing was a retaliatory act that violated his First Amendment right to free speech.

The case ended up before the Supreme Court because Lane appealed a decision by the Eleventh Circuit Court of Appeals, which found that Lane testified against his former colleague as a government employee-not as a citizen. To rightfully claim retaliation for protected speech under the First Amendment, the appellate court ruled, a public employee must show that he spoke as a citizen on a matter of public concern.

On Thursday, the Supreme Court ruled that Lane had done just that.

The Supreme Court had to address whether the speech in question-Lane's testimony against his former colleague-constituted speech by a citizen on a matter of public concern. "It clearly is," wrote Justice Sotomayor. "Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment."

While the court found that Lane’s speech was protected by the First Amendment, Justice Sotomayor warned that her ruling doesn’t rubber stamp First Amendment protection in every similar circumstance. “A public employee’s sworn testimony is not categorically entitled to First Amendment protection simply because it is speech as a citizen on a matter of public concern.” If the public employee discloses sensitive information during testimony, there’s a question of whether government interest outweighs an individual’s First Amendment right.

What can be applied more broadly, Justice Sotomayor wrote, is the notion that “public employees do not renounce their citizenship when they accept employment […] this court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights."